Congress May Declare the Forever War

The need for Congress to act—to rein in the president, to protect American blood and treasure, to preserve republican government, and to reassert its lawful, constitutional authority over war—has never been more urgent, with the single exception of the years of fighting in Vietnam, another conflict that began without a declaration of war and stretched across multiple presidencies, resulting in the deaths of 58,220 Americans.

To avert a like catastrophe, prominent Republicans and Democrats have been urging Congress to reassert itself on the matter of where the president is permitted to wage war and expressing their belief that the status quo undermines the rule of law.

President Trump’s saber-rattling only adds urgency to the question.

But incredibly, the most widely supported effort to improve on the Authorization to Use Military Force (AUMF) that Congress passed after the September 11, 2011 terrorist attack, a resolution that has been stretched past the breaking point by successive presidents, would actually legalize war in all of the places it is presently being waged and radically increase the president’s ability to legally expand the Forever War.

Proposed by Senators Tim Kaine and Bob Corker, its radicalism approaches that of a constitutional amendment. Their new AUMF would subvert an article at the core of the Constitution, gutting a vital protection against tyranny devised by the Framers. It would authorize multiple existing wars without even debating them individually. It would empower Trump and his successors to unilaterally wage war in new countries, expand their ability to indefinitely detain prisoners without charges, and empower them to unilaterally kill individuals even inside the United States.

In opposition, the ACLU has declared, “It would be hard to overstate the depth and breadth of the dangers to the Constitution, civil liberties, and human rights that the Corker-Kaine AUMF would cause … The Corker-Kaine AUMF would cause colossal harm to the Constitution’s checks and balances, would jeopardize civil liberties and human rights at home and abroad, would lead to a broad expansion of war without meaningful oversight, and would represent a sharp break from adherence to international law, including the United Nations Charter.”

The Fox News host Andrew Napolitano declared in testimony to Congress that “the legislation would give the president far more powers than he has now, would directly violate Congress’ war-making powers by ceding them away to the president, would defy the Supreme Court on the unconstitutionality of  giving  away core governmental  functions, would commit the U.S. to foreign wars without congressional and thus popular support, and would invite dangerous mischief by any president wanting to attack any enemy—real or imagined, old or new—for foreign or domestic political  purposes, whether American interests are at stake or not.”

And in his view it would be unconstitutional.

“Just because the branch of government that is losing power consents to that loss does not make it Constitutional,” he argued. “The Separation of Powers Doctrine was not written to preserve the power or the hegemony of the three branches for their own sake, but rather to preserve human liberty by keeping the branches at tension.”

Yet the law might well pass. And for that reason, while there is still time to stop it, the bill warrants the attention of every adult American, regardless of party or clique.

Before going farther, it is important to understand exactly what the proposed law says, and why some well-meaning legislators believe that passing it is a prudent course.

1. The bill would authorize the president to wage ongoing wars against the Taliban, al Qaeda, ISIS in Iraq and Syria, Al Qaeda in the Arabian Peninsula, Al Shabaab, Al Qaeda in Syria, the Haqqani Network, and Al Qaeda in the Islamic Mahgreb, in countries including Afghanistan, Iraq, Syria, Somalia, Yemen, and Libya.
2. The bill would create a way for the president to lawfully wage counterterrorism campaigns against those terrorist organizations in still other countries, and to add still other groups or individuals as “associated forces.”
3. More specifically, to wage war in a new country, or against a new group or person, Trump would merely have to notify Congress within 48 hours. Legislators would review his expansion of war and could vote to stop it—but that congressional “no” would be subject to a presidential veto, so it would effectively take a two-thirds majority in the House and Senate to stop any expansion of war. (Waging war against a new country would still be governed by the War Powers Resolution of 1973—not that presidents generally adhere to that law.)
4. It would repeal the 2002 Iraq War authorization.
5. It would expand the list of those vulnerable to indefinite detention without charges or trial by applying a former National Defense Authorization Act to new groups.

For proponents, those provisions are attractive because they bring existing wars under the color of law; define what groups count as “associated forces” of al-Qaeda; force the president to notify Congress upon adding a new associated force—which doesn’t always happen now—and force a legislative debate; and guarantee no White House lawyer can misuse the Iraq War AUMF.

That isn’t nothing.

Kaine’s thinking is perhaps illuminated by an anecdote he related on the Senate floor last year while discussing the notification provision in his proposed law. In April of 2014, he said, the Department of the Navy solicited contractual bids for “personnel recovery, casualty evacuation, and search and rescue” in “high risk environments” in 14 countries: Algeria, Burkina Faso, Chad, Libya, Mali, Morocco, Niger, Nigeria, Cameroon, Cote d’Ivoire, Ghana, Benin, Togo, and Tunisia.

“Only five of those 14 countries have ever been notified to Congress pursuant to war powers letters, but we were planning to engage in casualty evacuation in connection with high-risk activities in all of these countries in Africa,” Kaine said. “I’d like a process that informs Congress and informs the public equal to what we put in contracting documents to inform military contractors.”

That would be nice. The oft-violated War Powers Resolution ought to do the trick already; still, a new law that forced public disclosure of all warring might prove useful. But even as the Kaine/Corker bill attempts to wrest new information about where the president is waging war, it undercuts Congress’s ability to do anything about it, as if gaining a bit of transparency is worth trading away the war power itself.

Senator Rand Paul has rightly objected that the bill flips the Constitution on its head. “This authorization transfers the power to name the enemy and its location from Congress to the president,” Paul observed. “Worse yet,” he added, “this authorization changes the nature of declaring war from an affirmative vote of a simple majority to a negative, supermajority vote to disapprove of presidential wars. So if the president defines a new associated force that our military will attack, Congress can only stop that president with a two-thirds vote to overcome his veto.”

Napolitano sharpened the point in testimony to Congress. “So a president with one-third plus one vote in either House of Congress can wage war on any target at any time the president chooses,” he fumed. “That is so contrary to what Madison intended, so contrary to the plain meaning of the Constitution, so violative of the separation of powers as to be a rejection of the oath to preserve, protect, and defend the Constitution. And none of you wants to reject that oath.”

The legal scholar Jonathan Turley most effectively underscored how anathema the proposal would be to the Framers who so deliberately vested the war power in Congress.

“This is one of the few points on which there was almost unanimity [at the Constitutional Convention],” he explained. “I say almost because Pierce Butler actually proposed to give this entire power to the president of the United States. He didn’t receive a second. He spoke to a room of Framers and made that proposal, and not a single one seconded that motion. That was one of the most important moment of our republic. That silence, the absence of a sound, shows where we began.”

And one needn’t care at all about the views of the Framers to see the dangerous implications of empowering the president today as the Kaine/Corker bill would do.

“Do I want my son going to war with al-Shabbab in Somalia?” Christopher Anders of the ACLU asked. “My son can’t find Somalia on a map,” he declared. “Probably very few people in this room know what al-Shabbab is.” Yet under the law being considered, “if the president wants to send 200,000 troops there and go all out in house-to-house fighting, as we did in Afghanistan and Iraq, he can do that.”

Or say, for instance, that President Trump wanted to invade Pakistan, a nuclear power, with a force of 50,000 American troops. Even after the reckless precedents that Obama set with the constitutionally dubious arguments he offered to justify his illegal intervention in Libya, and the similarly dubious arguments Trump offered to justify his illegal bombing of Syria, a ground invasion of Pakistan would be hugely difficult to justify without the imprimatur of Congress.

But if Corker/Kaine becomes law, Trump could simply order the invasion, then notify Congress that he intended to wage war in a new country where the Taliban operates. And he would be perfectly within the law to start deploying troops without advance permission or notification, and to keep doing so even if majorities in the House and Senate were against him, so long as even a third of either chamber declined to order him to reverse the expansion of the Forever War.

Now say Trump wanted to wage war in Mexico. He might do so within the law by declaring a drug cartel that trafficked in Afghan opium to be an associated force of the Taliban.

Hours after the first drone strikes fell on Ciudad Juarez he could notify Congress that he was targeting a new associated force in a new country. Once again, a majority of Congress could vote against him without stopping the war. The law’s failure to exclude the United States as country that the president can add, and language that allows individuals to be added as “associated forces,” even raises the specter of drone strikes or other targeted killings on American soil—something many today would consider not only unlawful, but an impeachable offense.

Little wonder that Turley considers the law worse than the current AUMF. “It will make this body a pedestrian to war,” he said. “It will put war-making on autopilot. And this law does not even have a sunset provision. It just goes on. Under the former AUMFs, we’ve gone through 17 years of war. Adopt this proposal and we’ll have 170 more. It will revise the Constitution without an amendment.”

At Just Security, Tess Bridgeman offers several changes to the legislation that would allow Congress to retain more control. “First and foremost,” she writes, “a new AUMF could explicitly state that it does not authorize the use of force against ‘associated forces’ beyond those named in the statute, and that the President must come back to Congress and seek authority to use force when necessary.”

The same should go for combat in new countries. And rather than requiring mere congressional debate on ongoing wars every four years, “the new AUMF should sunset in 4 years,” Bridgeman writes. “Congress can reauthorize force just as it reauthorizes other extraordinary authorities, and a decision not to do so should be taken seriously.” She concludes that “if Congress truly wants to reassert its role in authorizing military force, which I strongly believe it should do, it should not hand the President the permanent authority to expand the conflict unless a veto-proof supermajority can be mustered to stop him.”

There are those in Congress who agree. Representative Barbara Lee, the lone member of Congress to predict the Forever War that the post-9/11 AUMF ushered in, warned in an open letter, “I have grave concerns about the current proposal authored by Senator Bob Corker and Senator Tim Kaine that would continue our state of perpetual war.” Paul organized a hearing against the bill, where Senators Sanders, Lee, Udall, Peters, and Merkely shared their misgivings. But the fate of the proposal remains unclear.

https://www.theatlantic.com/politics/archive/2018/06/congress-may-declare-the-forever-war/562175/